Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00774-CV
Ray BASALDUA,
Appellant
v.
George FARINACCI, LaDona Farinacci and Jim House,
Appellees
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-05926
Honorable Larry Noll, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Jason Pulliam, Justice
Delivered and Filed: September 2, 2015
AFFIRMED
Appellant Ray Basaldua appeals a summary judgment granted in favor of appellees George
Farinacci, LaDona Farinacci, and Jim House. In his first issue, Basaldua contends the appellees’
motion challenged only one of his causes of action; therefore, the trial court erred in granting
summary judgment on all of his claims. In his second issue, Basaldua asserts the trial court erred
in granting summary judgment based on the law applicable to volunteer board members because
he sued the appellees in their individual capacities. We affirm the trial court’s judgment.
04-14-00774-CV
BACKGROUND
Basaldua was the independent project manager/builder for an addition to a house in the
Clear Springs Park Subdivision which was subject to protective covenants and deed restrictions.
On November 9, 2012, the homeowner informed Basaldua that she had been sued by the Clear
Springs Park Property Owners Association which had obtained a temporary restraining order
against her. The lawsuit was filed because the homeowner had proceeded with the work to her
house without obtaining the Association’s approval as required by protective covenants and deed
restrictions. When the homeowner terminated her agreement with Basaldua, Basaldua filed the
underlying lawsuit against the homeowner and the appellees, who were members of the
Association’s board. Basaldua asserted claims for fraud, tortious interference with existing
contract, tortious interference with prospective relations, breach of contract, and aiding and
abetting.
In his petition, the actions on which Basaldua bases his claims against the appellees are the
filing of the lawsuit against the homeowner and the alleged filing of fraudulent documents with
the court. The petition alleged the documents contained misrepresentations that the appellees were
officers of the Association who had the authority to approve construction plans and to institute
legal action based on the protective covenants and deed restrictions. In filing the lawsuit and the
documents, Basaldua alleged the appellees acted fraudulently and tortiously interfered with his
contract and business relationship with the homeowner.
The appellees filed a motion for summary judgment. The appellees first asserted summary
judgment should be granted “dismissing Plaintiff’s causes of action” because the appellees are
immune from liability as volunteer board members of the Association. The appellees cited both
federal and state law, asserting the federal Volunteer Protection Act “is a statutory bar to Plaintiff’s
claims” and the Texas Non-Profit Corporation Act also protected them from “liability for
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Plaintiffs’ claims.” The appellees also asserted Basaldua could not prevail on his breach of
contract claim because no contract existed between the appellees and Basaldua.
Basaldua filed a response to the appellees’ motion. The response did not address the
appellees’ argument or legal authority regarding immunity. Instead, the response simply stated
the appellees had not met the traditional summary judgment burden.
After a hearing, the trial court granted the appellees’ motion. The trial court’s order states,
“This order disposes of all Plaintiff’s claims against Defendants.” Basaldua nonsuited his claims
against the homeowner, making the trial court’s judgment final, and he timely appealed.
DISCUSSION
In his first issue, Basaldua contends the trial court erred in granting summary judgment as
to all of his claims because the appellees’ motion only addressed his breach of contract claim.
Summary judgment may not be granted on a cause of action not addressed in the summary
judgment motion. City of Midland v. O’Bryant, 18 S.W.3d 209, 218 (Tex. 2000); Chessher v.
Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983). In this case, however, the appellees’
motion addressed all of Basaldua’s claims by asserting they were immune from liability as to all
of his claims. Accordingly, Basaldua’s first issue is overruled.
In his second issue, Basaldua asserts he sued the appellees as individuals, not as board
members of the Association. To determine the capacity in which a person is sued, we look at the
course of the proceedings and the nature of the liability the plaintiff seeks to impose. Ross v.
Linebarger, Goggan, Blair & Sampson, L.L.P., 333 S.W.3d 736, 743 (Tex. App.—Houston [1st
Dist.] 2010, no pet.); Harless v. Niles, 100 S.W.3d 390, 395 (Tex. App.—San Antonio 2002, no
pet.). “In our review of the pleadings, we must ascertain the true nature of the plaintiff’s claims
and not exalt form over substance.” Ross, 333 S.W.3d at 743.
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In this case, Basaldua seeks to hold the appellees liable for filing the lawsuit against the
homeowner and for documents filed in that lawsuit. The lawsuit against the homeowner, however,
was filed by the Association, not the appellees. Accordingly, any actions by the appellees in
relation to the lawsuit were undertaken in their capacity as members of the Association’s board.
Basaldua does not assert any issue challenging the appellees’ entitlement to immunity in their
capacity as the Association’s board members. Because Basaldua sought to impose liability on the
appellees for actions taken in their capacity as members of the Association’s board, we overrule
his second issue.
CONCLUSION
The trial court’s judgment is affirmed.
Sandee Bryan Marion, Chief Justice
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